news The Labor Federal Government has flatly rejected legislation introduced this week that would see Australian law enforcement agencies blocked from obtaining access to telecommunications records without a warrant, stating that such regulations would “critically impede national security and law enforcement investigations”.
The bill, introduced by Greens Senator and Communications Spokesperson Scott Ludlam into the Senate this week, would not prevent law enforcement and intelligence agencies from accessing material through telecommunications interception practices in order to carry out their functions; however, it would require that they obtain a warrant from a source such as a member of the judiciary before being able to access such information.
The Greens have brought the bill as community fears have constantly grown both in Australia and globally over the past several years as a series of leaks and government disclosures have revealed how law enforcement agencies are increasingly using telecommunications interception practices to gather data on residents of their own countries, as well as those overseas.
The use of this information is currently skyrocketing in such law enforcement organisations. According to the latest Telecommunications Interceptions and Access Act (TIA) annual report, Australian law enforcement agencies were granted access to personal information about Australians 293,501 times throughout the 2011-12 year, without obtaining a warrant or having any judicial oversight.
In addition, a number of Australian organisations have expressed fears that the US is passing vast amounts of data to Australian law enforcement agencies gleaned through the National Security Agency’s secretive PRISM project, which reportedly has given the agency access to spy on foreign citizen’s data held on the servers of global technology giants such as Microsoft, Google and Apple. Both Ludlam and Shadow Communications Minister Malcolm Turnbull have demanded answers from the Australian and US Governments on the matter.
Delimiter has asked both the Coalition and the Government whether either would be supporting Ludlam’s legislation. The Coalition has not yet responded, but a spokesperson for Attorney-General Mark Dreyfus yesterday issued a flat denial that any such support would be forthcoming. “The Government will not be supporting the Bill,” the spokesperson said.
“The Bill’s requirement for ASIO and law enforcement agencies to get a warrant to obtain telecommunications data would critically impede national security and law enforcement investigations. Currently telecommunications data is obtained under authorisation at a
preliminary stage of an investigation, often to identify targets as well as excluding persons from the investigation.
“Requiring a warrant to conduct initial investigations to identify suspects, or to exclude innocent persons, through the use of telecommunications data would be much more onerous and more time consuming, delaying agencies from obtaining warrants to access telecommunications content for an investigation. Under the Bill a warrant would be needed to identify telecommunications data that would then be used to obtain a warrant to access the content of the communications.”
The spokesperson added that the amendments in the Bill “completely dismantle” recent amendments approved by the Parliament to accede to the Council of Europe’s Cybercrime Convention that allows effective sharing of telecommunications data between Australian agencies and their foreign counterparts. “This would put Australia in breach of its international obligations,” they added.
In addition, the Attorney-General’s spokesperson stated that Ludlam’s legislation was “inconsistent” in its application of access to telecommunications data by Australian agencies.
“It would require criminal law enforcement agencies to obtain a warrant for access to both prospective and historical telecommunications data for the purpose of investigating criminal offences at a higher threshold than currently applies,” they said. “But it would leave all other enforcement agencies able to access historical telecommunications data for investigating pecuniary penalties and the protection of the public revenue by internal authorisation at the current penalty thresholds.”
The comments echo sentiments already expressed by Attorney-General Mark Dreyfus on the issue. For example, several weeks ago, Dreyfus made the declaration that Australian law enforcement in Australia “would grind to a halt” if police officers and other law enforcement agents were forced to apply for a warrant every time they wanted to access Australians’ telecommunications data.
Speaking on the ABC’s 7:30 program at the time, Dreyfus rejected calls for warrants on telecommunications data to be re-introduced. “To require a warrant for every time, and it’s in the thousands, the mini thousands, of times that a law enforcement agency accesses this non contact telecommunications data would mean I think that law enforcement in Australia would grind to a halt,” he said.
Although some elements of the Coalition, such as Turnbull, have expressed concerns about some planned aspects of the national telecommunications interception regime, such as Labor’s controversial data retention plan, it’s also true that in general, the Coalition has been broadly supporting of enhancing law enforcement access to telecommunications data.
However, it is not clear that law enforcement agencies would not be able to carry out their duties effectively without warrantless access to certain types of telecommunications data — especially ‘metadata’, meaning data that is not technically the content of communications such as telephone calls and emails, but only the time and length of the communication, as well as the identities of the communicating parties, for example.
Ludlam has previously pointed out that much law enforcement access to this kind of data was only made possible through changes to the Telecommunications Act and the Telecommunications Interception and Access Act in 2007, in the wake of global security concerns around terrorism that extended after the September 11 terrorist attacks in the US in 2001.
“In May 2013 the Independent National Security Legislation Monitor concluded that several of the 80 hastily made changes to Australian law after the events of September 11 were not effective, appropriate or necessary,” the Greens Senator said this week. “The scope and reach of the laws were unprecedented, and included extraordinary powers of surveillance, detention and restriction and censorship on speech.”
“Given that Australia’s security agencies and police forces have been deployed against targets that fall well beyond threats to national security such as climate change demonstrators, the occupy movement, anti-whaling campaigners and supporters of the WikiLeaks publishing organization, the lines between terrorism, civil disobedience and healthy dissent are being routinely blurred.”
The Australian Law Reform Commission has also recommended that the Telecommunications Interception and Access Act be reviewed in its entirety, but the Government has not yet committed to meeting this recommendation.
What else would you expect an Attorney-General to say on this issue? Labor or Liberal, no matter which politician it is, every Federal Attorney-General Australia has had in recent times has appeared to be acting highly in concert with the wishes of law enforcement agencies and their department, rather than acting as a check and balance on the bureaucrats and law enforcement officers. Australia’s politicians are supposed to be representatives of the people. But increasingly, when those politicians become attorney-generals, they tend to act more and more as the representatives of the police and intelligence officers who enforce Australia’s laws, and the bureaucrats who seem to write them. Great.